Objector-Appellant, et al., Plaintiffs-Appellees,

NO. 11-4156

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

In re: DRY MAX PAMPERS LITIGATION

DANIEL GREENBERG,

Objector-Appellant,

v.

ANGELA CLARK, et al.,

Plaintiffs-Appellees,

and

THE PROCTER & GAMBLE COMPANY; PROCTER & GAMBLE PAPER

PRODUCTS COMPANY; PROCTER & GAMBLE DISTRIBUTING LLC,

Defendants-Appellees.

On Appeal from the United States District Court

For the Southern District of Ohio, No. 1:10-cv-00301 TSB

BRIEF OF DEFENDANTS-APPELLEES THE PROCTER & GAMBLE

COMPANY; PROCTER & GAMBLE PAPER PRODUCTS COMPANY;

AND PROCTER & GAMBLE DISTRIBUTING LLC

D. Jeffrey Ireland

Brian D. Wright

FARUKI IRELAND & COX P.L.L.

500 Courthouse Plaza, S.W.

10 North Ludlow Street

Dayton, OH 45402

Attorneys for Defendants-Appellees

The Procter & Gamble Company;

Procter & Gamble Paper Products

Company; and Procter & Gamble

Distributing LLC

Case: 11-4156 Document: 006111248788 Filed: 03/20/2012 Page: 1

CORPORATE DISCLOSURE STATEMENT


ii


iii


iv

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................................... vii

STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 1

STATEMENT OF THE ISSUES ..................................................................................... 2

STATEMENT OF THE CASE ........................................................................................ 4

STATEMENT OF THE FACTS ..................................................................................... 6

I. BACKGROUND OF LITIGATION AND SETTLEMENT .................................. 6

A. The Parties Reached a Settlement After Significant, Hard-Fought

and Contentious Litigation .......................................................................... 6

B. The Proposed Settlement Provides for Injunctive Relief .......................... 10

1. The Settlement Class..................................................................... 10

2. Comprehensive Injunctive Relief ................................................. 10

a. Reinstatement of Money-Back Guarantee Program ......... 11

b. Label Modifications .......................................................... 11

c. Website Modifications ...................................................... 11

d. Diaper Rash Skin Programs .............................................. 12

3. Limited Release and Waiver of Class Action Procedural

Device in Future Actions .............................................................. 13

II. THE DISTRICT COURT GRANTED FINAL APPROVAL OF THE

PROPOSED SETTLEMENT ............................................................................... 14

SUMMARY OF THE ARGUMENT ............................................................................ 17

ARGUMENT ....................................................................................................... 18

I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION OR

COMMIT ERROR IN APPROVING THE SETTLEMENT ............................... 18

II. THE DISTRICT COURT PROPERLY CERTIFIED A SETTLEMENT

CLASS UNDER RULE 23(b)(2).......................................................................... 20


v

A. The Settlement Provides for Injunctive Relief Only and the Issue

of Whether Monetary Relief Can Ever Be Included in a Rule

23(b)(2) Class is Not Presented Here........................................................ 21

B. The Plain Language of Rule 23(b)(2) and Relevant Caselaw

Support Certification ................................................................................. 25

C. The Injunctive Relief Offered in the Settlement Shows that a

Settlement Class May be Certified under Rule 23(b)(2) .......................... 26

1. The Complaint is Not Relevant to the Certification of the

Rule 23(b)(2) Settlement Class ..................................................... 26

2. The Substantive Claims Released in the Settlement Are Not

Relevant to Certification of a Rule 23(b)(2) Class ....................... 31

3. Certification of a Rule 23(b)(2) Class Remains Appropriate

from the Perspective of the Class Definition ................................ 34

4. Certification Here Did Not Depend on Class Counsel's

"Subjective Preference" ................................................................ 36

D. The Limited Release of Future Class Action Filings Does Not

Preclude Rule 23(b)(2) Certification ........................................................ 37

III. THE SETTLEMENT'S LIMITED RELEASE COMPLIES WITH DUE

PROCESS ....................................................................................................... 42

IV. THE CLASS DEFINITION IS APPROPRIATE AND CONSISTENT

WITH THE LAW IN THIS CIRCUIT ................................................................. 44

V. THE SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE ................ 48

A. The Likelihood of Ultimate Success on the Merits Balanced

Against the Amount and Form of Relief Offered Supports

Approval ................................................................................................... 48

B. The Risks, Expense and Delay of Further Litigation All Support

Approval of the Settlement ....................................................................... 50

C. The Stage of Proceedings and Amount of Discovery Support


D. The Judgment and Experience of Counsel Who Have Competently

Evaluated the Strengths and Weaknesses of the Case Support


E. The Negotiations Support Approval of the Settlement ............................. 54


vi

F. That Only Three Settlement Class Members Have Objected Shows

Strong Support for Settlement Approval .................................................. 55

G. The Settlement Is Consistent With the Public Interest ............................. 56

VI. THE DISTRICT COURT CORRECTLY FOUND THAT THE NOTICE

PROVIDED IN THIS CASE SATISFIED THE REQUIREMENT OF

PROVIDING "NOTICE IN A REASONABLE MANNER" ............................... 57

CONCLUSION ....................................................................................................... 61

CERTIFICATE OF COMPLIANCE ........................................................................... 63


vii

TABLE OF AUTHORITIES

I. Cases Page(s)

AT&T Mobility LLC v. Concepcion, __ U.S. __, 131 S. Ct. 1740 (2011) .......................41

Alaniz v. Saginaw Cnty., No. 05-10323, 2009 U.S. Dist.

LEXIS 43340 (E.D. Mich., May 21, 2009) ...........................................................21, 47

Allen v. Int'l Truck & Engine Corp., 358 F.3d 469 (7th Cir. 2004) ..................................30

Ansoumana v. Gristede's Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001) ....................46

Aro Corp. v. Allied Witan Co., 531 F.2d 1368 (6th Cir.),

cert. denied, 429 U.S. 862, 97 S. Ct. 165 (1976) .........................................................56

Austin v. Wilkinson, 83 Fed. Appx. 24 (6th Cir. 2003) ....................................................22

Bacon v. Honda of Am. Mfg., Inc., 205 F.R.D. 466 (S.D. Ohio 2001),

aff'd, 370 F.3d 565 (6th Cir. 2004) ..............................................................................35

Blaz v. Belfer, 368 F.3d 501 (5th Cir.), cert. denied, 543 U.S. 874, 125 S. Ct. 97

(2004) ...........................................................................................................................41

In Re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935 (9th Cir. 2011) .......................28

Bolin v. Sears, Roebuck & Co., 231 F.3d 970 (5th Cir. 2000) ..........................................35

Bronson v. Bd. of Educ., 604 F. Supp. 68 (S.D. Ohio 1984).............................................54

Brown v. Kelly, 609 F.3d 467 (2d Cir. 2010) ................................................................... 35

Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir. 1992),

cert. dismissed, 511 U.S. 117 (1994) ...........................................................................43

Bus. Guides, Inc. v. Chromatic Commc'ns Enters., Inc., 498 U.S. 533, 111 S. Ct.

922 (1991) ....................................................................................................................25

Carnival Cruise Lines v. Shute, 499 U.S. 585, 111 S. Ct. 1522 (1991) ............................41

Christ v. Beneficial Corp., 547 F.3d 1292 (11th Cir. 2008) ........................................ 27-28

Clark Equip. Co. v. Int'l Union, Allied Indus. Workers,

803 F.2d 878 (6th Cir. 1986) .......................................................................................19

Clarke v. Advanced Private Networks, Inc., 173 F.R.D. 521 (D. Nev. 1997) ...................32


viii

Cleveland Elec. Illuminating Co. v. Utility Workers Union of Am.,

440 F.3d 809 (6th Cir. 2006) ................................................................................. 31-32

Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443 (6th Cir. 2002) ..................... 44

Crawford v. Equifax Payment Servs., 201 F.3d 877 (7th Cir. 2000)............... 28, 29, 40-41

Cruz v. Dollar Tree Stores, Inc., Nos. 07-2050, 07-4012, 2009 U.S. Dist.

LEXIS 62817 (N.D. Cal. July 2, 2009)........................................................................46

Daffin v. Ford Motor Co., No. C-1-00-458, 2004 U.S. Dist.

LEXIS 18977 (S.D. Ohio July 15, 2004) .....................................................................27

DeHoyos v. Allstate Corp., 240 F.R.D. 269 (W.D. Tex. 2007) .........................................59

Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 100 S. Ct. 1166 (1980) ......................41

Dewey v. Volkswagen of Am., 728 F. Supp. 2d 546 (D.N.J. 2010) ...................................5

D.S. ex rel. S.S. v. N.Y. City Dep't of Educ., 255 F.R.D. 59 (E.D.N.Y. 2008) .................45

In re Diet Drugs Prod. Liab. Litig., No. 99-20593, 2000 U.S. Dist. LEXIS 12275

(E.D. Pa. Aug. 28, 2000) ..............................................................................................37

Dillard v. City of Foley, 926 F. Supp. 1053 (M.D. Ala. 1995) .........................................59

Fidel v. Farley, 534 F.3d 508 (6th Cir. 2008) ..............................................................18, 47

Fresco v. Auto. Directions, Inc., No. 03-CIV-61063,

2009 U.S. Dist. LEXIS 125233 (S.D. Fla. Jan. 16, 2009) .....................................23, 40

In re Gen. Tire & Rubber Co. Sec. Litig., 726 F.2d 1075 (6th Cir. 1984) .........................48

Gooch v. Life Investors Ins. Co. of Am., Nos. 10-5003/5723,

2012 U.S. App. LEXIS 2643 (6th Cir. Feb. 10, 2012) .................. 18, 19, 25, 25-26, 36

Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S. Ct. 708

(2002) ...........................................................................................................................24

Grimes v. Vitalink Commc'ns Corp., 17 F.3d 1553 (3d Cir. 1994) ...................................42

Int’l Union v. Gen. Motors Corp., 497 F.3d 615 (6th Cir. 2007) ......................................58

Joel A. v. Giuliani, 218 F.3d 132 (2d Cir. 2000) ...............................................................22


ix

Johnson v. W. Suburban Bank, 225 F.3d 366 (3d Cir. 2000), cert. denied, 531

U.S. 1145, 121 S. Ct. 1081 (2001) ...............................................................................41

Kalamazoo River Study Group v. Rockwell Int’l Corp.,

355 F.3d 574 (6th Cir. 2004) .......................................................................................19

Kogan v. AIMCO Fox Chase, L.P., 193 F.R.D. 496 (E.D. Mich. 2000) ...........................54

Laichev v. JBM, Inc., 269 F.R.D. 633 (S.D. Ohio 2008) ............................................ 44-45

Laskey v. UAW, 638 F.2d 954 (6th Cir. 1981) ...........................................................18, 19

Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766 (N.D. Ohio 2010) .........................5

McDonough v. Toys "R" Us, Inc., Nos. 2:06-cv-0242, 2:09-cv-06151, 2011 U.S.

Dist. LEXIS 150851 (E.D. Pa. Dec. 20, 2011) ..............................................................5

McGee v. E. Ohio Gas Co., 200 F.R.D. 382 (S.D. Ohio 2001) .........................................45

McManus v. Fleetwood Enters., Inc., 320 F.3d 547 (5th Cir. 2003) .................................35

Mogel v. UNUM Life Ins. Co. of Am, 646 F. Supp. 2d 177 (D. Mass. 2009) ..................35

Monreal v. Potter, 367 F.3d 1224 (10th Cir. 2004) ...........................................................28

Montgomery v. Aetna Plywood, Inc., 231 F.3d 399 (7th Cir. 2000) .................................61

Moulton v. U.S. Steel Corp., 581 F.3d 344 (6th Cir. 2009) .................................. 18, 39-40

Mueller v. CBS, Inc., 200 F.R.D. 227 (W.D. Pa. 2001) ....................................................47

Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011)....................................................59

In re Nationwide Fin. Servs. Litig., No. 2:08-cv-00249,

2009 U.S. Dist. LEXIS 126962 (S.D. Ohio Aug. 18, 2009) ........................................40

Nottingham Partners v. Trans-Lux Corp., 925 F.2d 29 (1st Cir. 1991) .............................42

Olden v. Gardner, 294 Fed. Appx. 210 (6th Cir. 2008) .....................................................55

Olden v. Lafarge Corp., 383 F.3d 495 (6th Cir. 2004), cert. denied,

545 U.S. 1152, 1255 S. Ct. 2990 (2005). .....................................................................20

Ortiz v. Fibreboard Corp., 527 U.S. 185, 119 S. Ct. 2295 (1999) ................... 24, 43, 43-44

Pavelic & LeFlore v. Marvel Entm't Grp., 493 U.S. 120, 110 S. Ct. 456 (1989) ..............25


x

Pella Corp. v. Saltzman, 606 F.3d 391 (7th Cir. 2010), cert. denied, 131 S. Ct.

998 (2011) .............................................................................................................. 30-31

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S. Ct. 2965 (1985) ....................23, 43

Poplar Creek Dev. Co. v. Chesapeake Appalachia, LLC,

636 F.3d 235 (6th Cir. 2011) .......................................................................................18

Randall v. Loftsgaarden, 478 U.S. 647, 106 S. Ct. 3143 (1986) .......................................33

Reeb v. Ohio Dep't of Rehab. & Corr., 435 F.3d 639 (6th Cir. 2006) ............. 19, 20, 29-30

Richards v. Delta Air Lines, Inc., 453 F.3d 525 (D.C. Cir. 2006) .....................................28

Robinson v. Shelby Cnty. Bd. of Educ., 566 F.3d 642 (6th Cir. 2009) .............................19

Saur v. Snappy Apple Farms, Inc., 203 F.R.D. 281 (W.D. Mich. 2001) ...........................47

In re Schering Plough Corp. ERISA Litig., 589 F.3d 585 (3d Cir. 2009) .........................47

Sibley v. Fulton DeKalb Collection Serv., 677 F.2d 830 (11th Cir. 1982) .......................29

Smith v. Ohio Dep't of Rehab & Corr., No. 2:08-cv-15, 2010 U.S. Dist.

LEXIS 81842 (S.D. Ohio Aug. 12, 2010) .............................................................23, 37

Stout v. J.D. Byrider, 228 Fed. Appx. 709 (6th Cir. 2000) ................................................19

TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456 (2d Cir. 1982) ...............................42

In re Telectronics Pacing Sys. Inc., 221 F.3d 870, 881 (6th Cir. 2000) ...........................44

Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 114 S. Ct. 1359 (1994) .........................24, 43

Trollinger v. Tyson Foods, Inc., 4:02-CV-23, 2007 U.S. Dist.

LEXIS 88866 (E.D. Tenn. Dec. 3, 2007) .....................................................................46

Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831 (1987) .............................................43

UAW v. Gen. Motors Corp., 497 F.3d 615 (6th Cir. 2007) .........................................19, 48

USW v. Cooper Tire & Rubber Co., 474 F.3d 271 (6th Cir. 2007)...................................31

In re Wal-Mart Stores, Inc., No. 06-02069, 2008 U.S. Dist.

LEXIS 109446 (N.D. Cal. May 2, 2008) .....................................................................46


xi

Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S. Ct. 2541 (2011) ........ 23-24, 32, 33, 43

Wallace v. Chi. Housing Auth., 224 F.R.D. 420 (N.D. Ill. 2004) ............................... 45-46

Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998)..........................................................25, 26

Weitz & Luxenberg, P.C. v. Sulzer Orthopedics, Inc.,

398 F.3d 778 (6th Cir. 2005) .......................................................................................18

Wike v. Vertrue, Inc., No. 3:06-00204, 2010 U.S. Dist. LEXIS 96700 (M.D.

Tenn. Sept. 15, 2010) ...................................................................................................46

Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983) .................................................. 54-55

Yong Soon Oh v. AT&T Corp, 225 F.R.D. 142 (D.N.J. 2004) \ .......................................37

II. Rules and Statutes

15 U.S.C. §§ 1691 et seq....................................................................................................44

15 U.S.C.S. §§ 1692e .........................................................................................................29

15 U.S.C.S. §§ 1692g.........................................................................................................29

Fed. R. Civ. P. 18(a) ..........................................................................................................38

Fed. R. Civ. P. 20(a) ..........................................................................................................38

Fed. R. Civ. P. 20(a)(1)(A) and (B) ...................................................................................38

Fed. R. Civ. P. 23 ...................................................................................................17, 18, 19

Fed. R. Civ. P. 23(a) .......................................................................................... 5, 14, 20-21

Fed. R. Civ. P. 23(a)(4) ........................................................................................................2

Fed. R. Civ. P. 23(b)(1)......................................................................................................37

Fed. R. Civ. P. 23(b)(2)................................................................................ 2, 5, 10, passim

Fed. R. Civ. P. 23(b)(3)..............................................................................29, 30, 37, 46, 58

Fed. R. Civ. P. 23(c)(2) ......................................................................................................58


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Fed. R. Civ. P. 23(c)(2)(B) ................................................................................................46

Fed. R. Civ. P. 23(e) ..................................................................................................2, 5, 61

Fed. R. Civ. P. 23(e)(1) ................................................................................................56, 58

Fed. R. Civ. P. 23(e)(5) ................................................................................................45, 46

III. Other Authorities

Restatement (Second) of Contracts § 349 (1981) ..............................................................33

Restatement (Second) of Contracts § 371(b) (1981) .........................................................33

7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice

and Procedure 2d § 1775....................................................................................... 20-21


STATEMENT REGARDING ORAL ARGUMENT

Defendants-Appellees The Procter & Gamble Company, Procter &

Gamble Paper Products Company, and Procter & Gamble Distributing LLC

(collectively "P&G") do not believe oral argument is necessary for purposes of

deciding this appeal. However, in the event this Court grants Appellant Daniel

Greenberg's request for oral argument, P&G respectfully requests the opportunity

to participate in the argument, in accordance with the Federal Rules of Appellate

Procedure and the Sixth Circuit Rules. Such participation by P&G will provide the

Court with the benefits of the analysis and argument presented by P&G when

considering the issues raised by this appeal. Because the issues relevant to

Plaintiffs-Appellees and P&G differ, P&G respectfully requests that Plaintiffs-

Appellees and P&G each be allotted time to present their respective oral

arguments.


2

STATEMENT OF THE ISSUES

1. Was the District Court within its discretion to approve a

settlement of equitable claims that preserves all individual claims for personal

injury or actual damages?

2. Was the District Court within its discretion in certifying a class

pursuant to Fed. R. Civ. P. 23(b)(2), where it found that all of the elements of Rule

23(b)(2) were satisfied and the Settlement offered only injunctive relief?

3. Was the District Court within its discretion to define the

Settlement Class to include those persons who purchased the product from August

2008 until the date of final approval?

4. Was the District Court within its discretion in finding the

Settlement was fair, adequate and reasonable?

5. Was the District Court within its discretion in approving the

Settlement based upon the information submitted to the District Court?

6. Was the District Court within its discretion in finding the

Named Plaintiffs and Lead Class Counsel met the adequacy requirements under

Fed. R. Civ. P. 23(a)(4)?


3

7. Was the District Court within its discretion in approving an

award of attorneys' fees?

8. Did the District Court find correctly that the notice provided in

this case satisfied the requirement of Fed. R. Civ. P. 23(e)?


4

STATEMENT OF THE CASE

After the Consumer Products Safety Commission ("CPSC") and

Health Canada announced an investigation of Dry Max Pampers diapers on May 5,

2010, twelve class actions were filed by Plaintiffs Angela Clark, et al.,1 asserting

claims on behalf of "all purchasers" of Dry Max Pampers diapers. The class

actions were transferred to the District Court and consolidated into In Re Dry Max

Litigation, No. 1:10-cv-00301.

Plaintiffs and P&G were able to reach a settlement that is uniquely

tailored to this litigation and that provides substantial benefits to Settlement Class

Members. 2 As part of the Settlement, P&G agreed to an injunction that requires it

to: (1) reinstate and extend its money-back guarantee program for unsatisfied

consumers (including Settlement Class Members who purchased the product

during the class period); (2) change its Dry Max Pampers product label; (3)

disseminate important health information on the Pampers website directed to the

issues in this litigation; and (4) develop programs in the area of babies' skin health.

In exchange, the Settlement Class Members agreed to release only equitable

1 There are 59 Named Plaintiffs (collectively "Plaintiffs ") in the consolidated

action. 2 All capitalized terms not defined in this Brief shall have the same meaning as set

forth in the RE #54-2, Settlement Agreement and Release ("Settlement

Agreement").


5

Claims; all Class Members (other than Named Plaintiffs) preserved the right to

bring individual claims for personal injury or actual damage.

The Settlement has been well-received by the Settlement Class

Members. While the Settlement Class Members likely number in the hundreds of

thousands, only three objected to the Settlement, two of whom are serial objectors.

Now one of those professional objectors has appealed the final approval.3

Rejecting the arguments presented by the objectors (including

Greenberg), the District Court found the Settlement satisfied the requirements of

Fed. R. Civ. P. 23(a), (b)(2) and (e). The Court found that the Settlement was fair,

reasonable, and adequate, and consistent with applicable laws. None of the

objectors moved for reconsideration of the Final Approval Order, but Greenberg

now appeals the District Court's Order.

3 Objector-Appellant Greenberg argues that he is not a professional objector and

seeks solely to "overturn an unfair settlement." (Objector-Appellant Brief, p. 1).

Greenberg is an attorney employed by the Center for Class Action Fairness

("CCAF") and a serial objector that disagrees with class action settlements in

general and the payment of class attorneys' fees in particular. See Dewey v.

Volkswagen of Am., 728 F. Supp. 2d 546, 575 (D.N.J. 2010). CCAF's client,

Greenberg, has been the CCAF's "objector" in several other class action

settlements, e.g., Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766 (N.D.

Ohio 2010); McDonough v. Toys "R" Us, Inc., Nos. 2:06-cv-0242 and 2:09-cv-

06151, 2011 U.S. Dist. LEXIS 150851, at *34-35 (E.D. Pa. Dec. 20, 2011).


6

STATEMENT OF THE FACTS

I. BACKGROUND OF LITIGATION AND SETTLEMENT

The Settlement provides considerable benefits in exchange for a

limited release, and is uniquely attuned to the issues in this litigation.4

A. The Parties Reached a Settlement After Significant, Hard-

Fought and Contentious Litigation

Plaintiffs filed the first of twelve complaints on May 11, 2010,

asserting claims on behalf of "all purchasers" of Dry Max Pampers diapers. RE #1,

Class Action Complaint, Clark et al. v. The Procter & Gamble Co., et al., Case No.

10-cv-301 (filed May 11, 2010). Each of the twelve actions was ultimately

transferred and consolidated into In Re Dry Max Pampers Litigation, Case No.

1:10-cv-00301. RE #15, June 16, 2010 Order on Plaintiffs' Motion For

Consolidation and Appointment as Interim Lead Counsel.

On August 23, 2010, Plaintiffs filed a 720-paragraph, 207-page

Consolidated Class Action Complaint after consultation with numerous experts and

over 700 parents, and participation in scientific experiments. RE #57, Plaintiffs'

Motion for Attorneys' Fees, Reimbursement of Expenses and Representative

4 P&G disputes many of the factual allegations contained in the Statement of Facts

section of the Brief of Plaintiffs-Appellees. As it has done throughout this

litigation, P&G stands behind the Dry Max Pampers as an innovation that has

benefited millions of children, and it continues to dispute the allegations in this

case.


7

Plaintiff Award Payments, p. 8. Plaintiffs conducted "informal . . . core

discovery," as ordered by the District Court. As part of that discovery, P&G

produced: (1) all Dry Max patents; (2) the names of ingredients and/or component

suppliers, with corresponding names of items supplied; (3) the names and locations

of manufacturers; (4) a list of all ingredients, including quantities, concentrations

and grades of raw materials; and (5) information about the assembly process. RE

#20, July 20, 2010 Preliminary Calendar Order; RE #68, Joint Motion of Plaintiffs

and Defendants for Final Approval of Settlement ("Final Approval Motion"), p. 5.5

The litigation was contentious. The Parties argued about discovery.

RE #28, Motion to Phase and Sequence Discovery. On November 12, 2010, after

oral argument, the District Court denied P&G's Motion and required full discovery

and class certification briefing by October 2011, with a trial scheduled for May

2012. RE #45, Calendar Order. Early in the proceedings, P&G also challenged

the viability of Plaintiffs' class and other claims by filing lengthy, significant pre-

motions to strike the class action allegations and to dismiss all of Plaintiffs' claims.

RE #39, Motion of Defendants The Procter & Gamble Company, Procter &

Gamble Paper Products Company and Procter & Gamble Distributing LLC to

Strike Plaintiffs' Class Allegations; RE #40, Motion of Defendant The Procter &

5 RE #25, Consolidated Class Action Complaint ("Consol. Compl."), ¶¶ 53-142.


8

Gamble Company, Procter & Gamble Paper Products Company and Procter &

Gamble Distributing LLC to Dismiss the Consolidated Class Action Complaint.

The litigation was complex -- more than 150 different witnesses were

identified, including several experts. Plaintiffs identified 13 witnesses from P&G

and the Parties were working with experts in at least seven different fields.

RE #27, Rule 26(f) Report of the Parties. Plaintiffs identified approximately 145

fact witnesses, including parents, caregivers and neighbors who had knowledge

about the diapers. RE #68 Final Approval Motion, p. 6 (citing Plaintiffs' Initial

Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1)).

The Plaintiffs faced significant risks in continuing this litigation, the

success of which was seriously in doubt. After investigating consumer complaints

(some of which were made by Plaintiffs) and extensive scientific data, the CPSC

announced on September 2, 2010, that it had identified no specific cause linking

Dry Max Pampers to diaper rash. RE #40-1, No Specific Cause Found Yet

Linking Dry Max Diapers to Diaper Rash, U.S. Consumer Product Safety

Commission, September 2, 2010 (available at http://www.cpsc.gov/CPSCPUB/

PREREL/prhtml10/10331.html). Health Canada, an analogous regulatory agency

in Canada, reached the same conclusion. RE #40-2, Health Canada, US Consumer

Product Safety Commission Find No Link Between Pampers Dry Max Diapers and


9

Severe Diaper Rash, Health Canada, September 2, 2010 (available at

http://www.hc-sc.gc.ca/ahc-asc/media/ftr-ati/_2010/2010_149-eng.php). The

CPSC reviewed over 4,700 consumer complaints, "clinical and toxicological data

found in published, peer-reviewed medical literature," and it "critically reviewed

data submitted by [P&G] and the results of a human cumulative irritation patch

study conducted by P&G in May 2010." Id. The CPSC also reviewed "chemistry,

toxicology and pediatric medicine information provided by Health Canada." Id.

In November 2010, in light of the pending discovery, factual

investigation, pending Motions and the agencies' decisions, the District Court held

the litigation schedule in abeyance to allow Plaintiffs and P&G to mediate and

attempt to resolve the litigation. RE #50, November 19, 2010 Order Granting Joint

Motion to Amend Calendar Order and Adjust Deadlines.

For the mediation, the Parties were assisted by the Honorable Layn

Phillips, former Judge of the United States District Court for the Western District

of Oklahoma. RE #68-3, May 24, 2011 Declaration of Hon. Layn Phillips,

("Phillips Decl.") ¶ 3. Judge Phillips presided over in-person mediation sessions

on February 7 and 8, 2011, in Southern California. Id. ¶ 4. When these sessions

failed to result in a complete agreement, Judge Phillips continued to communicate

with Plaintiffs and P&G in order to mediate a settlement. Id. After additional


10

telephonic mediation sessions, Plaintiffs and P&G eventually reached a heavily

negotiated Settlement Agreement in May 2011. Id. ¶¶ 5-9.6

B. The Proposed Settlement Provides for Injunctive Relief

1. The Settlement Class

The Parties agreed (for purposes of settlement only) to seek to certify

a mandatory, nationwide Settlement Class pursuant to Federal Rule of Civil

Procedure 23(b)(2), as follows:

All persons in the United States and its possessions and

territories, who purchased or acquired (including by gift)

Pampers brand diapers containing "Dry Max

Technology" from August 2008 through Final

Judgment.7

Settlement Agreement, p. 11. Because the Settlement Class was certified under

Rule 23(b)(2), there was no opt-out feature for the Settlement Class. Id. at 12.

2. Comprehensive Injunctive Relief

The Settlement provided for injunctive relief. The Parties agreed to

move jointly for the District Court to enter an injunction applicable to P&G and the

issues in the litigation. Settlement Agreement, p. 17. The District Court expressly

6 Judge Phillips confirmed that the discussions were vigorous on both sides and the

Settlement was the result of arm's-length negotiations. Id. ¶ 10. The Settlement

was negotiated in good faith and is fair and reasonable. Id. ¶ 11. 7 "Final Judgment" was defined as "the hearing date set by the Court for the final

approval of the Settlement Agreement." Settlement Agreement, p. 6.


11

incorporated by reference the Settlement Agreement and Release into the Final

Approval Order and Judgment. Final Approval Order, p. 3.

a. Reinstatement of Money-Back Guarantee Program

The injunction requires P&G to reinstate and extend its money-back

guarantee program and to continue the program for twelve (12) months after the

Effective Date. Settlement Agreement, p. 20. The terms of the program, including

requirements for proof of purchase, are to be consistent with the prior program. Id.

at 20-21.

b. Label Modifications

The injunction requires P&G to modify the Pampers Swaddlers and

Cruisers label to read as follows:

For more information on common diapering questions

such as choosing the right Pampers product for your

baby, preventing diaper leaks, diaper rash, and potty

training, please consult Pampers.com or call 1-800-

Pampers.

Settlement Agreement, p. 18. This statement must remain on the Pampers package

for a minimum of twenty-four (24) months. Id.8

c. Website Modifications

8 P&G is to modify the label as part of a rolling effort to be completed within

twenty-four (24) months of the Effective Date. Id. at 4.


12

Within thirty (30) days of the Effective Date,9 the injunction requires

P&G to post the following additional information on the Pampers website:

"Diaper rash is usually easily treated and improves

within a few days after starting home treatment. If your

baby's skin doesn't improve after a few days of home

treatment with over-the-counter ointment and more

frequent diaper changes, then talk to your doctor.

Sometimes, diaper rash leads to secondary infections that

may require prescription medications. Have your child

examined if the rash is severe or the rash worsens despite

home treatment.

See your child's doctor if the rash occurs along with any

of the following: (1) fever; (2) blisters or boils; (3) a

rash that extends beyond the diaper area; (4) pus or

weeping discharge.

Useful links: http://www.mayoclinic.com/health/diaper-

rash/DS00069 and

http://www.patiented.aap.org/content.aspx?aid=5297."

Settlement Agreement, pp. 18-19. This statement is to remain on the Pampers

website for a minimum of twenty-four (24) months after the Effective Date. Id. at

18.

d. Diaper Rash Skin Programs

9 The "Effective Date" is "the date on which all appellate rights with respect to the

Final Approval Order and Judgment have expired or have been exhausted in such a

manner as to affirm the Final Approval Order and Judgment, and when no further

appeals are possible, including review by the United States Supreme Court."

Settlement Agreement, pp. 5-6.


13

The injunction requires P&G to produce pediatric resident training

programs at leading children's health centers in the area of skin health, e.g.,

programs for medical schools and educational material in the amount of

$150,000/year for two (2) years. Settlement Agreement, pp. 19-20. P&G must

fund and develop the programs as soon as practicable and within a reasonable time

after the Effective Date. RE #73 Final Approval Order and Final Judgment ("Final

Approval Order"), pp. 5-6. The programs are required to give pediatric residents

(the first line in rash cases) additional training and information about skin health

and the treatment of diaper rash. Settlement Agreement at 20. The injunction

further requires P&G, as soon as practicable and within a reasonable time after the

Effective Date, to develop a program with the American Academy of Pediatrics in

the area of skin health in the amount of $50,000/year for two (2) years. Id.10

3. Limited Release and Waiver of Class Action Procedural

Device in Future Actions

In exchange for the above benefits, the Settlement Class Members

would provide P&G with a limited release of equitable Claims. Settlement

10

If any funds remain after developing either program, then P&G must use the

remaining funds to develop the other remaining program, as well as another similar

program. Settlement Agreement, p. 20. The Final Approval Order requires that

any remaining funds "shall be used to fund the other remaining program, as well as

another similar program." Final Approval Order, p. 6. Contrary to Greenberg's

suggestion, the clause is not a "nullity" because of "incorrect referents." Objector-

Appellant Brief, p. 10.


14

Agreement, pp. 22-23.11

Settlement Class Members (other than Named Plaintiffs)

expressly preserve the right to bring individual lawsuits for personal injury or

actual damages. Id. at 22. Settlement Class Members also agree to be

"permanently barred and enjoined from seeking to use the class action procedural

device in any future lawsuit against Released Parties, where the lawsuit asserts

Claims that were or could have been brought in State or Federal Court in this

Action prior to the entry of this Final Approval Order and Judgment and are not

otherwise released and discharged by the Settlement Agreement." Id. at 25.

II. THE DISTRICT COURT GRANTED FINAL APPROVAL OF THE

PROPOSED SETTLEMENT

On September 28, 2011, the District Court granted final approval of

the Settlement. Final Approval Order, pp. 6-7. The District Court found the

prerequisites identified in Fed. R. Civ. P. 23(a) and (b)(2) were satisfied in that (a)

the members of the Settlement Class were so numerous that joinder of all such

members was impracticable; (b) there were questions of law and fact common to

the Settlement Class; (c) claims of Plaintiffs were typical of claims of the

Settlement Class; (d) Plaintiffs and Lead Class Counsel fairly and adequately

11

"Claims" is defined to "mean all claims, demands, actions, suits, causes of

action, allegations of wrongdoing and liabilities asserted by Plaintiffs, individually

and as Class Representatives, in th[e] Action." Settlement Agreement, p. 5.


15

protected and represented the interests of the class; and (e) the action provided for

injunctive relief. Id.

The District Court found the Settlement was fair, adequate and

reasonable because (a) there was no evidence of fraud or collusion underlying the

Settlement, which was reached after good faith, arms'-length negotiations; (b)

Plaintiffs' likelihood of success on the merits balanced against the amount and

form of relief offered in the Settlement weighed in favor of the Settlement; (c) the

complexity, expense and likely duration of the ligation favored the Settlement; (d)

the state of the proceedings and the amount of discovery weighed in favor of the

Settlement; (e) the judgment of experienced trial counsel weighed in favor of

Settlement; (f) the nature of the negotiations favored the Settlement; (g) the

number and nature of the objections raised by class members weighed in favor of

the Settlement; and (h) the public interest weighed in favor of the Settlement. Id.

at 7-8.

The District Court awarded Class Counsel $2.73 million for attorneys'

fees, costs and expenses. RE #74, Order Granting Plaintiffs' Motion for Attorney

Fees, Reimbursement of Expenses and Representative Plaintiff Award Payments,

p. 1. Since the maximum amount of attorneys' fees were negotiated during

mediation, P&G agreed not to oppose or object to Class Counsel's application for


16

attorneys' fees, costs and expenses in an amount up to $2.73 million, in the

aggregate. Settlement Agreement, § VII. The Court further awarded

Representative Plaintiff Awards ("RPA") in the amount of $1,000 per affected

child. Final Approval Order at 10. The RPA compensates Plaintiffs solely for

their time and effort associated with their participation in this Action, and not for

reimbursement or compensation for any damages, injury, reimbursement for

medical bills or any such other payment or relief sought in the Action. Settlement

Agreement at 21. Plaintiffs' and P&G's negotiation of the RPA did not occur until

after the substantive terms of the Settlement, including the Injunctive Relief, had

been negotiated and agreed upon during the mediation. Id.


17

SUMMARY OF THE ARGUMENT

After vigorous litigation by the Parties, the District Court properly

approved and certified the settlement of this difficult class action. Hard-fought

litigation and good-faith negotiations mediated by a respected former judge

resulted in a Settlement with significant benefits for the Settlement Class. In

exchange, Settlement Class Members agree to a limited release of equitable Claims

and all Class Members (other than Named Plaintiffs) preserve their right to bring

individual lawsuits for personal injury and actual damages. Settlement Class

Members also agree not to use the class action procedural device for a second time.

After fully considering the difficulties associated with this litigation,

including the likelihood of ultimate success on the merits and the risks, expense

and delay of further litigation, the District Court certified the Settlement Class

under Fed. R. Civ. 23(b)(2) and found that the Settlement was fair, adequate and

reasonable. These rulings were well within the Court's proper exercise of its

discretion.

Objector-Appellant Greenberg, a professional objector, misconstrues

and minimizes the substantial benefits offered by the Settlement. Greenberg's

displeasure with Fed. R. Civ. P. 23 and class action practice do not change the

fundamental fact that the Settlement in this case provides real and substantial relief

to Settlement Class Members and is fair, adequate and reasonable.


18

ARGUMENT

I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION OR

COMMIT ERROR IN APPROVING THE SETTLEMENT

Greenberg challenges the certification of the Settlement Class, the

fairness of the settlement and the award of attorneys' fees. Other than the issue of

adequate notice,12

all of these decisions by the District Court are subject to a very

limited review for clear abuse of discretion. Gooch v. Life Investors Ins. Co. of

Am., Nos. 10-5003/5723, 2012 U.S. App. LEXIS 2643, at *24 (6th Cir. Feb. 10,

2012) ("The district court's decision certifying the class is subject to a very limited

review and will be reversed only upon a strong showing that the district court's

decision was a clear abuse of discretion."); Poplar Creek Dev. Co. v. Chesapeake

Appalachia, LLC, 636 F.3d 235, 244-245 (6th Cir. 2011) ("The acceptance of a

settlement in a class action suit is discretionary with the [district] court and will be

overturned only by a showing of abuse of discretion.") (quoting Laskey v. UAW,

638 F.2d 954, 957 (6th Cir. 1981)); Moulton v. U.S. Steel Corp., 581 F.3d 344, 350

(6th Cir. 2009 ("The district court did not abuse its discretion in approving this

release."); Weitz & Luxenberg, P.C. v. Sulzer Orthopedics, Inc. 398 F.3d 778, 780

(6th Cir. 2005) ("We review a district court's award or denial of attorney fees for

12

Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008) ("[W]hether a particular class

action notice program satisfies the requirements of Fed. R. Civ. P. 23 and the Due

Process Clause is a legal determination we review de novo.").


19

an abuse of discretion."); Clark Equip. Co. v. Int'l Union, Allied Indus. Workers,

803 F.2d 878, 880 (6th Cir. 1986) (citing Laskey v. UAW, 638 F.2d 954 (6th Cir.

1981)).13

The law favors the settlement of class action lawsuits. UAW v. GMC,

497 F.3d 615, 632 (6th Cir. 2007) (noting "the federal policy favoring settlement of

class actions"). There are significant benefits to the settlement of class actions,

especially complex ones, as substantial resources can be conserved by avoiding the

time, cost and rigors of prolonged litigation. Robinson v. Shelby Cnty. Bd. of

Educ., 566 F.3d 642, 649 (6th Cir. 2009). "[I]n assessing whether the settlement is

fair, equitable, and reasonable, the district court must not forget that it is reviewing

a settlement proposal rather than ordering a remedy in a litigated case." Id.

(internal quotation omitted). "[B]ecause settlement of a class action, like

13

Greenberg cites Kalamazoo River Study Group v. Rockwell Int'l Corp., 355 F.3d

574, 583 (6th Cir. 2004), for the proposition that this Court should review the

certification of a Rule 23(b)(2) class under the de novo standard. Kalamazoo

involved the District Court's interpretation of Rule 60(b). Id. Here, where

Greenberg is contesting the Court's application rather than interpretation of Rule

23, the District Court's decision to certify a settlement class under Rule 23(b)(2)

should be reviewed under the abuse of discretion standard. Gooch, 2012 U.S. App.

LEXIS 2643, at *24 ("The district court's decision certifying the class is subject to

a very limited review and will be reversed only upon a strong showing that the

district court's decision was a clear abuse of discretion."); Reeb v. Ohio Dep't of

Rehab. & Corr., 435 F.3d 639, 643 (6th Cir. 2006) ("The district court maintains

substantial discretion in determining whether to certify a class, as it possesses the

inherent power to manage and control its own pending litigation.") (citing Stout v.

J.D. Byrider, 228 F.3d 709, 716 (6th Cir. 2000)).


20

settlement of any litigation, is basically a bargained for exchange between the

litigants, the judiciary's role is properly limited to the minimum necessary to

protect the interests of the class and the public." Id. "Judges should not substitute

their own judgment as to optimal settlement terms for the judgment of the litigants

and their counsel." Id. (Citation omitted.)

The District Court did not abuse its discretion in certifying the

Settlement Class or finding that the Settlement is fair, reasonable and adequate.

The Court committed no error in approving the notice plan agreed to by the parties.

The Court's Final Approval Order should be affirmed in its entirety.

II. THE DISTRICT COURT PROPERLY CERTIFIED A

SETTLEMENT CLASS UNDER RULE 23(b)(2)

Certification under Rule 23(b)(2) is appropriate when an action

provides for declaratory or injunctive relief. Reeb v. Ohio Dep't of Rehab. &

Corr., 435 F.3d 639, 651 (6th Cir. 2006). As this Court has previously held,

"[d]isputes over whether [an] action is primarily for injunctive . . . relief rather than

a monetary award neither promote the disposition of the case on the merits nor

represent a useful expenditure of energy. Therefore, they should be avoided. If the

Rule 23(a) prerequisites have been met and injunctive or declaratory relief has

been requested, the action usually should be allowed to proceed." Olden v.

Lafarge Corp., 383 F.3d 495, 510-11 (6th Cir. 2004) (quoting 7A Charles Alan


21

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, 2d §

1775), cert. denied, 545 U.S. 1152, 125 S. Ct. 2990 (2005). See also Alaniz v.

Saginaw Cnty., No. 05-10323, 2009 U.S. Dist. LEXIS 43340, at *8-9 (E.D. Mich.

May 21, 2009) (certifying a Rule 23(b)(2) settlement class and preliminarily

approving settlement).

A settlement class must satisfy two conditions under Rule 23(b)(2), in

addition to the Rule 23(a) prerequisites. First, "the party opposing the class has

acted or refused to act on grounds that apply generally to the class," and second,

"final injunctive relief or corresponding declaratory relief is appropriate respecting

the class as a whole." Fed. R. Civ. P. 23(b)(2). This Settlement satisfies both

requirements, and certification of the Settlement Class under Rule 23(b)(2) was

entirely appropriate.14

A. The Settlement Provides for Injunctive Relief Only and the

Issue of Whether Monetary Relief Can Ever Be Included in a

Rule 23(b)(2) Class is Not Presented Here

Seeking to create new law, Greenberg argues that this Court should

hold that monetary claims can never be included in a Rule 23(b)(2) class

settlement, even where the monetary claims are incidental to the injunctive or

declaratory relief offered in the settlement. Objector-Appellant Brief, pp. 17-19. 14

The remainder of this section corresponds to Objector-Appellant Greenberg's

Argument section on a point-by-point basis, as it pertains to P&G.


22

In his attempts to change class action practice, Greenberg misinterprets the benefits

of this Settlement.

As part of the Settlement, P&G agreed to an injunction requiring it to:

(1) reinstate and extend its money-back guarantee program for unsatisfied

consumers (including Settlement Class Members who purchased the product

during the class period); (2) change the Dry Max Pampers product label to provide

guidance to consumers; (3) disseminate important health information on the

Pampers website that is directed to the issues addressed in this litigation; and (4)

develop and fund preventative programs in the area of babies' skin health.

Greenberg ignores an important point; this Settlement focuses on injunctive relief

and provides for no class-wide damages or other monetary relief.

Since all Settlement Class Members (except the Named Plaintiffs)

preserve any claims for personal injury or actual damages, this case is well-suited

for class certification under Rule 23(b)(2). See Austin v. Wilkinson, 83 Fed.

Appx. 24, 25 (6th Cir. 2003) ("[Appellant's] main complaint seems to be a desire to

pursue compensatory damages; he is of course not barred from seeking damages

by the preclusive effect of the class action, which bars only future injunctive

relief."); Joel A. v. Giuliani, 218 F.3d 132 (2d Cir. 2000) (affirming the District

Court's approval of a Rule 23(b)(2) class action settlement, reasoning that the


23

injunctive relief was adequate and the release preserved the right of individual

plaintiffs to sue for damages or equitable relief); Smith v. Ohio Dep't of Rehab. &

Corr., No. 2:08-cv-15, 2010 U.S. Dist. LEXIS 81842, at *7, 10 (S.D. Ohio Aug.

12, 2010) (certifying a settlement class under Rule 23(b)(2), noting that "if any

[class member] has a documented, medically-substantiated asbestos-related

condition, he is free to file a separate cause of action . . . [and] the pending

litigation will not affect his rights in that regard" and holding that objecting class

member "always had the right and ability to bring a separate cause of action to

pursue compensatory damages for physical injury."); Fresco v. Auto. Directions,

Inc., No. 03-CIV-61063, 2009 U.S. Dist. LEXIS 125233, at *13 and n.4 (S.D. Fla.

Jan. 16, 2009) (certifying a Rule 23(b)(2) settlement and noting that "the parties'

settlement preserves any individual claims that class plaintiffs may have for actual

damages, claims which might otherwise have precluded certification under Rule

23(b)(3).").

Greenberg argues that a Rule 23(b)(2) class can never be certified

when the matter "contain[s] any claim, even a non-predominant one, for monetary

relief." Objector-Appellant Brief, p. 17 (citing Phillips Petroleum Co. v. Shutts,

472 U.S. 797, 812, 105 S. Ct. 2965, 2974 (1985)). Greenberg relies on the recent

Supreme Court decision in Wal-Mart Corp. v. Dukes, __ U.S. __, 131 S. Ct. 2541

(2011) for the proposition that monetary claims can never be included in relief


24

provided for in a Rule 23(b)(2) class. Objector-Appellant Brief, p. 18. Greenberg

also cites to Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 114 S. Ct. 1359 (1994)

and Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S. Ct. 2295 (1999) as support for

his argument that Rule 23(b)(2) certification of the Settlement Class is

inappropriate. Greenberg overstates the law and mischaracterizes the Settlement.

This Settlement does not provide for any monetary relief for the

Settlement Class, but rather injunctive relief. While the Settlement requires the

Class to release certain future causes of action (like restitution and rescission),15

claims for personal injury or actual damages are carved out of the release.

Settlement Class Members may recover monetary damages in future individual

lawsuits. None of the cases cited by Greenberg involved a settlement that provided

for injunctive relief only, while preserving claims for personal injury or actual

damages. And none of these cases stand for the proposition he advocates; namely,

that very limited causes of action that might provide for monetary relief can never

be released in a Rule 23(b)(2) settlement. Because the Settlement provides

exclusively for injunctive relief rather than monetary relief, this Settlement was

properly certified under Rule 23(b)(2).

15

But see Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210-14,

122 S. Ct. 708, 712-15 (2002) (holding that only narrow categories of restitution

are equitable in nature).


25

B. The Plain Language of Rule 23(b)(2) and Relevant Caselaw

Support Certification

The Federal Rules of Civil Procedure are given "their plain meaning,"

and a Court's "inquiry is complete" if "the text of the Rule [is] clear and

unambiguous." Bus. Guides, Inc. v. Chromatic Commc'ns Enters., Inc., 498 U.S.

533, 540-41, 111 S. Ct. 922, 927-28 (1991) (quoting Pavelic & LeFlore v. Marvel

Entm't Grp., 493 U.S. 1989 120, 123, 110 S. Ct. 456, 458 (1989). Rule 23(b)(2)

asks whether defendant "has acted or refused to act on grounds that apply generally

to the class, so that final injunctive relief or corresponding declaratory relief is

appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). The phrase

"so that" indicates that injunctive relief is "appropriate" within the meaning of Rule

23(b)(2) when the case centers on "a pattern or practice that is generally applicable

to the class as a whole[.]" Gooch v. Life Investors Ins. Co. of Am., Nos. 10-

5003/5723, 2012 U.S. App. LEXIS 2643, at *58 (6th Cir. Feb. 10, 2012) (quoting

Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998)).

The Settlement Class comprises essentially all consumers who bought

or acquired Pampers diapers containing Dry Max Technology through the date of

the final approval hearing. Settlement Agreement, p. 11. P&G's conduct toward

all of these Settlement Class Members was "uniform" in that it supplied all those

persons with diapers containing Dry Max Technology. Gooch, 2012 U.S. App.


26

LEXIS 2643, at *58-59. Whether the children of all Settlement Class Members

suffered diaper rashes -- the injury that Plaintiffs allege, and P&G denies -- is

irrelevant. Id. (noting that 23(b)(2) certification is appropriate even where not all

of the class members have suffered the same injury, as long as the defendant's

conduct was generally applicable to the class). Injunctive relief is the foundation

for the Settlement. The plain language of Rule 23(b)(2) supports certification of

the Settlement Class.

C. The Injunctive Relief Offered in the Settlement Shows that a

Settlement Class May be Certified under Rule 23(b)(2)

Greenberg argues that this Court should ignore the relief offered by

the Settlement and determine instead that monetary claims predominate from the

perspectives of the Consolidated Complaint, class definition and release. This

argument ignores the reality of the Settlement. The Parties sought to certify a class

for settlement purposes only; thus, this Court should examine the relief provided

by the Settlement to determine whether certification under Rule 23(b)(2) is

appropriate. Any examination of the Settlement shows that the District Court

exercised appropriate discretion in certifying this Settlement Class under Rule

23(b)(2).

1. The Complaint is Not Relevant to the Certification of the

Rule 23(b)(2) Settlement Class


27

Greenberg asserts that "[j]udicial assessment of the complaint and

causes of action is customary procedure in courts of this Circuit and across the

nation." Objector-Appellant Brief, p. 21.16

However, since the Parties are seeking

to certify a settlement class (and not a litigation class), an examination of the relief

requested as part of the Settlement is the relevant inquiry.

Greenberg admits that most of the cases he cites are inapposite

because plaintiffs sought certification of a litigation class, not a settlement class.

Daffin v. Ford Motor Co., No. C-1-00-458, 2004 U.S. Dist. LEXIS 18977, at *2-3

(S.D. Ohio July 15, 2004) (deciding plaintiff's motion to certify a litigation class),

aff'd, 458 F.3d 549 (6th Cir. 2006); Christ v. Beneficial Corp., 547 F.3d 1292,

16

Greenberg argues that the Parties "acknowledged that looking to the complaint

can be of value when deciding whether injunctive or monetary claims

predominate" and judicial estoppel should prevent the Parties from arguing that the

Complaint should not be reviewed for purposes of determining whether Rule

23(b)(2) certification was appropriate. Objector-Appellant Brief, p. 21. While the

Parties referred the Court to requests for injunctive relief in the Prayer for Relief,

the Parties did not argue that the District Court should look only to the

Consolidated Complaint (and not the relief offered in the Settlement) when making

the Rule 23(b)(2) certification decision. RE #54 Joint Motion for Certification of

Settlement Class, Preliminary Approval of Settlement, Approval of Notice Plan

and Notice Administrator and Appointment of Lead Counsel ("Preliminary

Approval Motion"), p. 16. Both the Preliminary Approval Motion and Final

Approval Motion discussed in detail the injunctive relief offered in the Settlement

and explained that personal injury or actual damages claims were carved out of the

Settlement. Preliminary Approval Motion, pp. 4-8 and RE #68, Joint Motion of

Plaintiffs and Defendants for Final Approval of Settlement ("Final Approval

Motion"), pp. 15-16.


28

1299 (11th Cir. 2008) (reversing the certification of a litigation class because the

Truth in Lending Act did not provide for injunctive or declaratory relief); Monreal

v. Potter, 367 F.3d 1224, 1236 (10th Cir. 2004) (affirming denial of certification of

a litigation class); Richards v. Delta Air Lines, Inc., 453 F.3d 525, 530 (D.C. Cir.

2006) (affirming denial of certification of a litigation class). Where the

certification of a litigation class is being sought, an examination of the complaint is

relevant because it determines the relief that the litigation class is seeking.17

Here,

however, the focus properly should be on the relief obtained as part of the

Settlement rather than that which is sought in the Consolidated Complaint to

determine whether certification is appropriate.

For his argument that a complaint dictates whether Rule 23(b)(2)

certification is proper, Greenberg relies heavily on the Ninth Circuit's recent

decision in In Re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 945 n.8 (9th

Cir. 2011) and the Fifth Circuit's decision in Crawford v. Equifax Payment Servs.,

201 F.3d 877, 882 (7th Cir. 2000). Neither case supports reversal of the District

Court's certification of a Rule 23(b)(2) Settlement Class in this case. While the

footnote in Bluetooth Headset says the Ninth Circuit looked at the complaint, it

17

Even if an examination of the Consolidated Complaint was relevant, it, too,

seeks injunctive relief. In the Prayer for Relief, Plaintiffs ask the District Court to

order P&G to take affirmative actions. Consol. Compl., pp. 205-06, Prayers B and

C. These Prayers for Relief can be satisfied only by an injunction.


29

was not for the purpose of determining whether certification was appropriate.

Rather, the Ninth Circuit considered the complaint to determine the value of the

injunctive relief for purposes of the fee award. Id. Bluetooth Headset involved a

general release of all claims (unlike the limited release in this settlement) and

certification under Rule 23(b)(3). Crawford is distinguishable because it involved

the settlement of claims brought under the Fair Debt Collection Practices Act, 15

U.S.C.S. §§ 1692e and 1692g, which provides only for monetary relief. Crawford,

201 F.3d at 882; Sibley v. Fulton DeKalb Collection Serv., 677 F.2d 830, 834

(11th Cir. 1982). Here, by contrast, injunctive relief is available under Plaintiffs'

causes of action, and such relief is what this Settlement provided.

Greenberg also argues that one must examine the Consolidated

Complaint to prevent Settlement Class Members with "authentic monetary claims"

from being forced into a Rule 23(b)(2) class. Objector-Appellant Brief, p. 22.

Even if this concern is relevant to certification, it does not weigh against

certification in this case. Certification of the Settlement Class will not affect class

members' individual monetary claims, which are expressly preserved.

Moreover, Greenberg cites this Court's decision in Reeb v. Ohio Dep't

of Rehab. & Corr. as support for the "customary" practice of reviewing the

complaint. Objector-Appellant Brief, p. 21. Yet, Greenberg ignores this Court's


30

holding that, on remand, Plaintiffs in Reeb could make a choice about whether to

seek certification of a class under Rule 23(b)(3) (and seek monetary damages that

predominate over injunctive relief), or whether to proceed under Rule (23)(2) (and

seek declaratory or injunctive relief). "Plaintiffs now have the choice of

proceeding under Rule 23(b)(3) in an action for money damages or in an action

under Rule 23(b)(2) for declaratory or injunctive relief alone or in conjunction with

compensatory and punitive damages that inure to the group benefit." 435 F.3d at

651.

Given the realities of this litigation and what could reasonably be

achieved by negotiations, Plaintiffs chose to pursue injunctive relief, rather than

continuing to pursue certification of a litigation class under Rule 23(b)(3). 18

Such

a choice is especially appropriate in this case. See e.g., Allen v. Int'l Truck &

Engine Corp., 358 F.3d 469, 472 (7th Cir. 2004) (vacating District Court's order

denying class certification, remaining matter "with instructions to certify a class

under Rule 23(b)(2) for equitable matters and to reconsider the extent to which

damages matters also could benefit from class treatment"); Pella Corp. v.

18

The practical effect of Greenberg's argument would merely be to require

Plaintiffs to amend their complaint prior to entering into (or seeking approval of)

the Settlement. Requiring Plaintiffs to amend their 207-page Consolidated

Complaint, for the sole purpose of seeking to certify a Rule 23(b)(2) class, would

be a waste of time and resources, especially in the settlement context.


31

Saltzman, 606 F.3d 391, 395 (7th Cir. 2010) (affirming decision to certify a Rule

23(b)(2) class for purposes of equitable relief where damages claim was alleged to

go forward individually), cert. denied, 131 S. Ct. 998 (2011).

2. The Substantive Claims Released in the Settlement Are

Not Relevant to Certification of a Rule 23(b)(2) Class

The Settlement releases equitable claims only, and preserves

individual claims for personal injury and actual damages. Greenberg nevertheless

asserts that, from the perspective of the release, monetary damages claims continue

to predominate. Objector-Appellant Brief, pp. 27-29. However, as explained in

more depth below, Greenberg misrepresents the release. Moreover, even if

Greenberg's interpretation of the release was plausible, Greenberg never explains

why examining a release is relevant to certification under Rule 23(b)(2). The

release is not relevant to the requirements under Rule 23(b)(2).

Nothing in the caselaw suggests that a release provision is relevant to

certification under Rule 23(b)(2). Greenberg cites two cases, and neither supports

that proposition. The first, USW v. Cooper Tire & Rubber Co., held that

certification was improper not because a release was relevant to certification under

Rule 23(b)(2), but rather because plaintiff (a union) could not, as a matter of

substantive labor law, release the claims of retirees. 474 F.3d 271, 282-83 (6th Cir.

2007). The decision was about labor law, compare Cleveland Elec. Illuminating


32

Co. v. Utility Workers Union of Am., 440 F.3d 809, 817-18 (6th Cir. 2006) (a

union must obtain its retirees' consent before acting on their behalf); not about

class certification. Greenberg's second case, Clarke v. Advanced Private

Networks, Inc., 173 F.R.D. 521, 522 (D. Nev. 1997), stands for the unremarkable

point that releases are relevant to the approval of a settlement as fair, adequate, and

reasonable.19

Greenberg argues that the release of equitable Claims in the

Settlement precludes certification under Rule 23(b)(2) because it discharges

"individual[] monetary relief in the form of restitution . . . or rescission." Objector-

Appellant Brief, p. 28.20

The release was carefully negotiated and is appropriately

19

Nor does Clarke provide any support for the proposition that "[m]andatory

settlements that purport to release claims for monetary relief should be held unfair

as a matter of law." Objector-Appellant Brief, p. 27. Unlike here -- where

individual claims for personal injury or actual damages are preserved -- the parties

in Clarke agreed to release "all claims." 173 F.R.D. at 522. Clarke does not

support the position that this Settlement Class is inappropriate for certification

under Rule 23(b)(2).

20 Similarly, Greenberg claims that the Wal-Mart decision prohibits the

certification of a Rule 23(b)(2) class in this case because the "analysis is not

between 'equitable' claims and 'legal' remedies." Objector-Appellant Brief, p. 28.

Contrary to Objector-Appellant's position, Wal-Mart should not be read so broadly

to prevent the certification of a Rule 23(b)(2) settlement in this case, where the

Settlement provides for injunctive relief only. Wal-Mart prohibits the certification

of a Rule 23(b)(2) litigation class where back-pay claims are resolved as part of the

litigation. Wal-Mart, 131 S. Ct. at 2560. This Settlement preserves claims for

personal injury and actual damages, while providing for injunctive relief. The (footnote cont'd…)


33

tailored to this case. Even if the limited release discharges claims for restitution

and rescission, Greenberg gives no reason why a legal claim that is preserved as

part of the Settlement would not provide the same relief. Just as restitution or

rescission would allow purchasers to receive their purchase price, Restatement

(Second) of Contracts § 371(b) (1981); Randall v. Loftsgaarden, 478 U.S. 647,

656-57, 106 S. Ct. 3143, 3149-50 (1986), so too would compensatory contract

damages. Restatement (Second) of Contracts § 349 (1981) (injured party has right

to damages that include expenditures made in performance of the contract).

In other words, a release of restitution or rescission claims does not

actually release any monetary damages. Even if Greenberg is right that a release of

monetary damages is unacceptable under Rule 23(b)(2), this Settlement preserves

claims that could provide for the same monetary relief.21

While Greenberg says he

is concerned that certain releases of monetary claims in Rule 23(b)(2) settlements

may be unfair, Objector-Appellant Brief p. 27, he should not be allowed to

__________________________ (…cont'd)

certification of a Settlement Class in this case is proper under Rule 23(b)(2), and

complements the recent Wal-Mart decision. 21

Greenberg broadly reads the release as implying that claims other than equitable

Claims are released because of the "interpretative canon of expresio unius est

exclusio alterius." The release cannot be read so broadly. The "Scope of Release"

states that Settlement Class Members are releasing "all equitable Claims" and

while some causes of action that may provide for monetary recovery are released

(like rescission and restitution), the release is expressly limited to "equitable

Claims."


34

shoehorn an argument against the approval of such settlements into an argument

against their certification.22

3. Certification of a Rule 23(b)(2) Class Remains

Appropriate from the Perspective of the Class Definition

Greenberg contends that certification of the Settlement Class under

Rule 23(b)(2) is inappropriate because the Settlement provides prospective

injunctive relief "tailored to benefit future purchasers." Objector-Appellant Brief,

p. 24. To make this argument, Greenberg misconstrues (or unfairly minimizes) the

benefits of the Settlement.

While Greenberg attempts to characterize the Settlement as providing

benefits only to future purchasers, he is mistaken. The injunctive relief requires

P&G to reinstate and extend its money-back guarantee program for all qualifying

Settlement Class Members who purchased the product during the class period.

Settlement Agreement, at ¶ V.B.4.23

Greenberg cites several cases to make this point, but each is

distinguishable. Objector-Appellant Brief, p. 24. Settlement Class Members need

22

There was nothing unfair, inadequate, or unreasonable about the release in the

Settlement so as to prevent approval. See supra pp. 42-44. 23

P&G had terminated its money-back guarantee on new Dry Max Pampers. It

agreed to reinstate it only after negotiations with Plaintiffs resulted in including

this requirement in the injunctive relief ordered in this Settlement.


35

not have an ongoing relationship with P&G to take advantage of the money-back

guarantee. By contrast, in several of the cases cited by Greenberg, the injunctive

relief would have benefited only those who had an ongoing relationship with

defendants. Bacon v. Honda of Am. Mfg., Inc., 205 F.R.D. 466, 486 (S.D. Ohio

2001), aff'd, 370 F.3d 565 (6th Cir. 2004) (rejecting the certification of a litigation

class because injunctive relief would benefit only current employees and not

former employees); Brown v. Kelly, 609 F.3d 467, 482 (2d Cir. 2010) (injunctive

relief would not be appropriate with respect to the statewide class as a whole);

McManus v. Fleetwood Enters., Inc., 320 F.3d 547, 554 (5th Cir. 2003) (rejecting

certification of a Rule 23(b)(2) litigation class where the injunctive relief would

not benefit those without an ongoing relationship with defendant); Bolin v. Sears,

Roebuck & Co., 231 F.3d 970, 978 (5th Cir. 2000) (rejecting certification of a

litigation class under Rule 23(b)(2) where all the harm was in the past and relief

was aimed at the future); and Mogel v. UNUM Life Ins. Co. of Am, 646 F. Supp.

2d 177, 184 (D. Mass. 2009) (rejecting certification of a litigation class where class

members would not benefit from the prospective injunctive relief that was sought

in the litigation). Brown v. Kelly, 609 F.3d at 482, is also inapposite. There,

unlike here, the court rejected certification of a state-wide Rule 23(b)(2) litigation

class because defendants (New York City officials) had not acted on grounds

applicable to the whole class. Id. at 482.


36

Unlike each of the cases above, which related to the certification of a

litigation class, the Settlement at issue here provides benefits to each Settlement

Class Member. While Greenberg guesses that Settlement Class Members may not

take advantage of the reinstated money-back program, his speculation cannot

undermine the significance of the benefit. The fact remains; the Settlement does

not require Settlement Class Members to have an "on-going relationship" with

P&G. The significant benefits provided to all Settlement Class Members is a

significant factor establishing the appropriateness of this Settlement Class for

certification under Rule 23(b)(2).24

4. Certification Here Did Not Depend on Class Counsel's

"Subjective Preference"

Greenberg dismisses the Parties' decision to classify these claims as

Rule 23(b)(2) claims as simply "not relevant" for purposes of determining whether

to certify a Settlement Class. Objector-Appellant Brief, pp. 29-30. The Parties did

not seek certification of the Settlement Class under Rule 23(b)(2) based upon their

own "subjective preference."25

Rather, the Parties understood the strengths and

24

Greenberg's suggestion that Rule 23(b)(2) should apply only to discrimination

cases, or cases involving constitutional rights, is without compelling support in the

law. See Gooch, 2012 U.S. App. LEXIS 2643. 25

While Plaintiffs did not expressly cite Rule 23(b)(2) in the Consolidated

Complaint, Plaintiffs sought injunctive relief. Consol. Compl., pp. 205-06

(seeking an order to "ensure that the Dry Max Pampers lack the capacity to cause (footnote cont'd…)


37

weaknesses of this case based on the litigation and negotiated a Settlement that

provides for solely injunctive relief and preserves the right of Settlement Class

Members to bring individual claims for personal injury and actual damages.

D. The Limited Release of Future Class Action Filings Does Not

Preclude Rule 23(b)(2) Certification

Citing no relevant precedent, Greenberg argues that certification

under Rule 23(b)(2) is inappropriate because the Settlement prohibits Settlement

Class Members from initiating a second class action based on the same transaction

and events that are involved in this case. Objector-Appellant Brief, pp. 31-35. To

the contrary, this action remains appropriate for certification.

On this point, Greenberg mis-states what the Settlement actually does.

Objector-Appellant Brief, p. 32. The class-action provision is limited to "Claims,"

__________________________ (…cont'd)

severe [diaper] rashes . . . [and] submit product testing results on a regular basis to

ensure that their products lack the capacity to cause severe rashes. . . . "). When a

complaint seeks injunctive relief, this Court can certify a settlement class under

Rule 23(b)(2). Smith, 2010 U.S. Dist. LEXIS 81842, at *2 (certifying a Rule

23(b)(2) settlement class where plaintiff's complaint sought certification under

Rule 23(b)(1), (b)(2) and (b)(3)); In re Diet Drugs Prod. Liab. Litig., No. 99-

20593, 2000 U.S. Dist. LEXIS 12275, at *130 (E.D. Pa. Aug. 28, 2000) (finding

that the cohesion necessary for settlement of a Rule 23(b)(2) class is present, in

part, because in the settlement context, individual issues related to personal injury

litigation are irrelevant); Yong Soon Oh v. AT&T Corp, 225 F.R.D. 142, 146-48

(D.N.J. 2004) (certifying a Rule 23(b)(2) settlement class where plaintiffs alleged

breach of contract, common law fraud, negligent misrepresentation and violation

of the New Jersey Consumer Fraud Act and sought damages in the complaint).


38

which are limited to "this Action" -- i.e., claims based on the alleged defects in Dry

Max Pampers. Settlement Agreement, p. 5 and § VIII. Greenberg seems to think

that because this portion of the release covers any claim that "could have been

brought" in this Action, it applies to any claim that could have accrued before final

judgment. Greenberg is incorrect. Since res judicata would bar the Named

Plaintiffs from initiating a new action based on any claim that could have accrued

before final judgment, the class action release provision applies only to absent

Class members. As a result, the relevant rule is not Federal Rule of Civil

Procedure 18(a), which deals with the joinder of claims, but Rule 20(a), which

deals with the joinder of absent parties.

An absent party can be joined in an action only if their right to relief

arises "out of the same transaction, occurrence, or series of transactions or

occurrences" and raises a "question of law or fact common to all plaintiffs." Fed.

R. Civ. P. 20(a)(1)(A) and (B). The class action release applies only to claims that

meet those requirements. Contrary to Greenberg's assertions, the class action

release provision applies only to claims that share a factual predicate with the


39

Named Plaintiffs' claims. This narrowly-tailored release provision26

applies only

to claims that allege defects in Dry Max Pampers.

The class action release provision is an essential element of the

negotiated Settlement, and it is offset by the preservation of individual claims for

personal injuries or actual damages. The Settlement affords broad (and fair)

injunctive relief, while preserving the right of Settlement Class Members to bring

future individual lawsuits for personal injury or actual damages. Settlement

Agreement at § VII. The Settlement Agreement does not, however, allow a

Settlement Class Member to file a second class action. Id.

Considering the Settlement as a whole, the class action provision is

necessary to effectuate the Settlement; otherwise, P&G would receive no valuable

consideration for the Settlement. A settlement embodies a compromise among the

litigants resulting in the bargained-for terms of the Settlement. Moulton v. U.S.

26

Greenberg also suggests the class action release provision somehow could be

considered a "prior restraint" on speech. Objector-Appellant Brief, p. 32. The

class action release provision prohibits Settlement Class Members from "seeking to

use the class action procedural device in any future lawsuit against Released

Parties, where the lawsuit asserts Claims." Settlement Agreement, § VIII.C.

While the class action provision does prevent Settlement Class Members from

"seeking" to use the "class action procedural device" (whether as a named plaintiff

or as a class member), the class action waiver is not a prior restraint on the

Settlement Class Members' freedom of speech. The prohibition on the second use

of the class action device is tied to the defined term "Claims," which is

appropriately tied to the claims made in this Action.


40

Steel Corp., 581 F.3d 344, 350-51 (6th Cir. 2009) ("The settlement process

depends on compromise, and the objectors cannot expect [the defendant] to give up

$4.45 million dollars, based on conduct since 2003, while leaving class members

free to turn around and sue the next day for the same conduct."). The class action

provision is a bargained-for concession, in return for the beneficial provisions

conferred on the Settlement Class. Importantly, the Settlement preserves the rights

of Settlement Class Members to pursue subsequent individual litigation for

personal injuries and actual damages.27

Greenberg does not cite a single case in which a court has refused to

certify a Rule 23(b)(2) settlement because of a class action release provision.

Rather, release provisions such as the one in this Settlement have been approved in

other settlements. E.g., In re Nationwide Fin. Servs. Litig., No. 2:08-CV-00249,

2009 U.S. Dist. LEXIS 126962, at *47 (S.D. Ohio Aug. 18, 2009); Fresco v. Auto.

Directions, 2009 U.S. Dist. LEXIS 125233, at *12-13, *21-34.28

27

The class action provision, as part of the overall Settlement, also serves the goal

of judicial efficiency and economy, which would be undermined if, in settling one

class, the Settlement Agreement permitted subsequent cascading, duplicative class

actions based on the same claims and theories. 28

To the extent Greenberg relies on Crawford v. Equifax Payment Servs., 201 F.3d

877 (7th Cir. 2000) to argue that certification is improper, his reliance is

misplaced. Unlike Crawford, where the settlement class members received no (footnote cont'd…)


41

There is a good reason that no court has refused certification due to a

settlement's limits on the class action procedure; limiting such future class actions

bars no substantive "right." Cf. Objector-Appellant Brief, p. 31.29

There is no

substantive "right" to proceed as a class action. Deposit Guar. Nat'l Bank v. Roper,

445 U.S. 326, 332, 100 S. Ct. 1166, 1171 (1980) ("the right of a litigant to employ

Rule 23 is a procedural right only, ancillary to the litigation of substantive claim");

Blaz v. Belfer, 368 F.3d 501, 504 (5th Cir. 2004) (no substantive right to pursue a

class action), cert. denied, 543 U.S. 874, 125 S. Ct. 97 (2004); Johnson v. W.

Suburban Bank, 225 F.3d 366, 371 (3d Cir. 2000) ("the 'right' to proceed to a class

action, insofar as the TILA is concerned, is a procedural one"), cert. denied, 531

U.S. 1145, 121 S. Ct. 1081 (2001).

__________________________ (…cont'd)

benefit from the settlement, this Settlement provides real and substantial relief to

Settlement Class Members in exchange for a limited release. 29

Greenberg attempts to equate the Settlement to a "contract of adhesion."

Objector-Appellant Brief, pp. 32-33 (citing AT&T Mobility LLC v. Concepcion,

__ U.S. __, 131 S. Ct. 1740 (2011) and Carnival Cruise Lines v. Shute, 499 U.S.

585, 111 S. Ct. 1522 (1991)). Greenberg ignores that this class action settlement is

far different than the contracts in AT&T Mobility and Carnival Cruise Lines

(where the Supreme Court found the class action waiver and forum selection

clause valid). Here, the Settlement was subject to review and approval by a

District Court as fair, reasonable and adequate -- hardly a "contract of adhesion."


42

III. THE SETTLEMENT'S LIMITED RELEASE COMPLIES WITH

DUE PROCESS

The Settlement discharges only equitable claims and preserves all

legal claims. Despite this reality, Greenberg argues that the District Court erred in

certifying the class because under the Due Process Clause, "a 23(b)(2) class cannot

discharge monetary claims." Objector-Appellant Brief, p. 17. There are several

problems with this argument.

First, Greenberg ignores that the Settlement does not, in fact,

discharge any monetary claims. As previously shown, the Settlement preserves all

claims for personal injury or actual damages to which Settlement Class Members

may be entitled. See supra pp. 32-33. Greenberg's due-process argument,

therefore, does not apply to the facts of this case, and the Court need not decide it.

Second, even assuming arguendo that the Settlement discharged

monetary claims, there is no precedent for Greenberg's argument about due

process. In the face of due process challenges, the First, Second, and Third

Circuits have all upheld releases that discharged monetary claims in non-opt-out

class actions. Grimes v. Vitalink Commc'ns Corp., 17 F.3d 1553, 1555, 1560 &

n.8 (3d Cir. 1994); Nottingham Partners v. Trans-Lux Corp., 925 F.2d 29, 31, 33-

34 (1st Cir. 1991); TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 458-61

(2d Cir. 1982).


43

Third, nothing in any Supreme Court decision compels this Court to

disagree with the First, Second, and Third Circuits and create a Circuit split. As

Greenberg admits, Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811 n.3, 105 S.

Ct. 2965, 2974 (1985) reserved the question he wants this Court to answer.

Appellant Brief, p. 17. Contrary to Greenberg's claims, Ticor Title Ins. Co. v.

Brown, 511 U.S. 117, 114 S. Ct. 1359 (1994), involved a class action that released

predominant, rather than incidental, claims for monetary damages. Brown v. Ticor

Title Ins. Co., 982 F.2d 386, 392 (9th Cir. 1992), cert. dismissed, 511 U.S. 117

(1994). Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S. Ct. 2541, 2558-59

(2011), did question whether binding class members to a class action that included

any "individualized claim for money" might violate due process. It did not,

however, address anything like this case, where the Settlement (even if it limits

claims for rescission or restitution) permits future claims for monetary relief for

actual damages and personal injuries.30

30

Greenberg relies on Ortiz v. Fibreboard Corp., 527 U.S. 815, 845-46, 119 S. Ct.

2295, 2314 (1999), which stated that "certification of a mandatory class followed

by settlement of its action for money damages obviously implicates the Seventh

Amendment jury trial rights of absent class members." The Seventh Amendment

applies only to legal claims, Tull v. United States, 481 U.S. 412, 417, 107 S. Ct.

1831 (1987), and thus the Settlement's preservation of all monetary claims removes

any Seventh Amendment concerns. More fundamentally, Ortiz based its decision

on the Federal Rules, not the Constitution. See Ortiz, 527 U.S. at 861 ("The nub of (footnote cont'd…)


44

Fourth, nothing in this Court's precedent suggests that the release

violates due process. Greenberg cites to this Court's decisions in Coleman v. Gen.

Motors Acceptance Corp., 296 F.3d 443, 447 (6th Cir. 2002) and In re Telectronics

Pacing Sys. Inc., 221 F.3d 870, 881 (6th Cir. 2000), but neither case supports his

argument. In Coleman, this Court held that compensatory damages under the

Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq., were not recoverable in a

Rule 23(b)(2) settlement. 296 F.3d at 447. In Telectronics Pacing Sys., this Court

held that notice and the opportunity to opt out must be provided in limited fund

Rule 23(b)(1) settlements. 221 F.3d at 881. Neither case held that claims for

rescission or restitution can never be released in a Rule 23(b)(2) settlement, when

such a release does not affect the monetary damages available to the Class.

IV. THE CLASS DEFINITION IS APPROPRIATE AND CONSISTENT

WITH THE LAW IN THIS CIRCUIT

The class definition provided in this Settlement is consistent with

class definitions certified appropriately in other cases. "While class definitions are

obviously individualized to the given case, important elements of defining a class

include: (1) specifying a particular group at a particular time and location who

were harmed in a particular way; and (2) defining the class such that a court can

__________________________ (…cont'd)

our position is that we are bound to follow Rule 23 as we understood it upon its

adoption, and that we are not free to alter it . . . .").


45

ascertain its membership in some objective manner." Laichev v. JBM, Inc., 269

F.R.D. 633, 639 (S.D. Ohio 2008) (citing McGee v. E. Ohio Gas Co., 200 F.R.D.

382, 387 (S.D. Ohio 2001) (certifying a class "through final judgment"). The

Settlement Class here meets those requirements. The defined Settlement Class

identifies a particular group ("all persons . . . who purchased or acquired (including

by gift) Pampers brand diapers containing 'Dry Max Technology'"), at a particular

time ("from August 2008 through Final Judgment") and location ("in the United

States and its possessions and territories").

Greenberg asserts that "late-purchasing" Settlement Class Members

(those purchasing the product between August 29, 2011 and September 28, 2011)

received inadequate notice and never had the opportunity to object to the

Settlement. There is no violation of Rule 23(e)(5), on which Greenberg relies, just

because Settlement Class Members may enter a class after the objection deadline.

If Greenberg's position were correct, many Rule 23(b)(2) classes, which include

persons who can enter the class in the future, could never be certified. See, e.g.,

D.S. ex rel. S.S. v. N.Y. City Dep’t of Educ., 255 F.R.D. 59, 68 (E.D.N.Y. 2008)

(certifying a class of high school students under Rule 23(b)(2) and approving a

settlement even though the definition reached students who would only join the

school in future years); Wallace v. Chi. Housing Auth., 224 F.R.D. 420, 431 (N.D.

Ill. 2004) (certifying a class that included persons who would move out of public


46

housing in the future). Greenberg's position, if accepted, would be an

unprecedented change in class-action law. Greenberg points to nothing indicating

that Rule 23(e)(5) was intended to effect such a change.

The cases cited by Greenberg are distinguishable or inapposite.

Objector-Appellant Brief, p. 35. Many of the cases involve the certification of

litigation classes under Rule 23(b)(3) where, unlike here, the heightened notice

standard of Rule 23(c)(2)(B) ("best notice that is practicable under the

circumstances") and the opt-out right apply.31

Other cases are distinguishable

because they involved class definitions of a litigation class where the parties

31

In re Wal-Mart Stores, Inc., No. 06-02069, 2008 U.S. Dist. LEXIS 109446, at

*15-16 (N.D. Cal. May 2, 2008) (defining Rule 23(b)(3) litigation class that did not

include "'future' class members"); Trollinger v. Tyson Foods, Inc., 4:02-CV-23,

2007 U.S. Dist. LEXIS 88866, at *8-11 (E.D. Tenn. Dec. 3, 2007) (defining Rule

23(b)(3) litigation class, ending as of the date of the certification order because of

opt-out right); Cruz v. Dollar Tree Stores, Inc., Nos. 07-2050, 07-4012, 2009 U.S.

Dist. LEXIS 62817, at *3-5 (N.D. Cal. July 2, 2009) (defining Rule 23(b)(3)

litigation class where plaintiff failed to provide end date); Wike v. Vertrue, Inc.,

No. 3:06-00204, 2010 U.S. Dist. LEXIS 96700, at *11-12 (M.D. Tenn. Sept. 15,

2010) (defining Rule 23(b)(3) litigation class where "parties could readily

determine a more appropriate end date to the class definition"); Ansoumana v.

Gristede's Operating Corp., 201 F.R.D. 81, 85 n.2 (S.D.N.Y. 2001) (defining Rule

23(b)(3) litigation class).


47

identified no end date.32

Still others actually support the class definition presented

here.33

To the extent there are any "late-purchasing class members," those

Settlement Class Members had notice of the Settlement prior to the purchase and

had the option of not purchasing the product.34

Rather than objecting to the

Settlement, those "late purchasing class members" could have decided not to

purchase to product. Further, if Settlement Class Members purchased and were

dissatisfied with the product, then they can avail themselves of the money-back

guarantee. The District Court defined an appropriate Settlement Class.

32

Alaniz v. Saginaw Cnty., No. 05-10323, 2009 U.S. Dist. LEXIS 43340, at *5

(E.D. Mich. May 21, 2009) (plaintiff provided open-ended class definition);

Mueller v. CBS, Inc., 200 F.R.D. 227, 235-36 (W.D. Pa. 2001) (rejecting definition

of a litigation class where plaintiffs failed to provide end date). 33

In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 602-03 (3d Cir. 2009)

(stating that nothing "should be read to preclude an open-ended class period, as

long as the period results from a proper application of law"); Saur v. Snappy Apple

Farms, Inc., 203 F.R.D. 281, 286 (W.D. Mich. 2001) (defining Rule 23(b)(3)

litigation class, stating that "federal courts have allowed class definitions which

include 'future' class members under Rule 23(b)(2)"). 34

Fidel v. Farley, 534 F.3d 508, 513-14 (6th Cir. 2008) ("To comport with the

requirements of due process, notice must be 'reasonably calculated to reach

interested parties.' Due process does not, however, require actual notice to each

party intended to be bound by the adjudication of a representative action.").


48

V. THE SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE

The Settlement provides Settlement Class Members with a good

resolution, especially considering the risks of going forward with litigation.

Considering the settlement factors,35

the District Court did not abuse its discretion

in approving the Settlement as fair, reasonable and adequate.

A. The Likelihood of Ultimate Success on the Merits Balanced

Against the Amount and Form of Relief Offered Supports

Approval

"The most important of the factors to be considered in reviewing a

settlement is the probability of success on the merits." In re Gen. Tire & Rubber

Co. Sec. Litig., 726 F.2d 1075, 1086 (6th Cir. 1984). Here, the prospect of any

recovery, had the Parties proceeded further to litigate the matter, was "not

overwhelming." RE #76, September 28, 2011 Fairness Hearing Transcript, pp. 32-

33 ("The plaintiffs' likelihood of success on a certified class action trial was not

overwhelming."). Significant questions exist as to whether Plaintiffs would have

survived the pending Motions or could have prevailed on the merits.

After investigating the same claims made by Plaintiffs,36

two

independent regulatory bodies -- the CPSC and Health Canada -- could not identify

35

UAW v. Gen. Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007). 36

E.g., Consol. Compl., ¶¶ 10-49.


49

any specific cause linking Pampers with Dry Max to diaper rash. RE #40-1, No

Specific Cause Found Yet Linking Dry Max to Diaper Rash, (available at

http://cpsc.gov/cpscpub/prerel/prhtml10/10331.html (last visited Aug. 30, 2011);

RE #40-2, Health Canada, US Consumer Product Safety Commission Find No

Link Between Pampers Dry Max Diapers and Severe Diaper Rash (available at

http://www.hc-sc.gc.ca/ahc-asc/media/ftr-ati/_2010/2010_149-eng.php) (last

visited Aug. 30, 2011). P&G's Motions raised substantial support for the early

dismissal of Plaintiffs' class action and claims. RE #39, Motion of Defendants The

Procter & Gamble Company, Procter & Gamble Paper Products Company and

Procter & Gamble Distributing LLC to Strike Plaintiffs' Class Allegations; RE #40,

Motion of Defendant The Procter & Gamble Company, Procter & Gamble Paper

Products Company and Procter & Gamble Distributing LLC to Dismiss the

Consolidated Class Action Complaint. Even if Plaintiffs' claims survived

dismissal, there was a risk as to whether Plaintiffs would ultimately prevail on the

merits. Settlement Class Members avoid this risk.

The Settlement challenged by this Objector-Appellant provides

certain and current relief, as opposed to uncertain litigation. Settlement Class

Members can seek reimbursement under the reinstated and year-long money-back

guarantee program. P&G agreed to provide specific information on its website

about skin irritation alleged to be associated with Dry Max Pampers and about


50

when a doctor should be consulted. P&G will develop programs in the area of skin

health. Nothing in the Settlement prevents any Settlement Class Member (other

than the Named Plaintiffs) from bringing individual claims for personal injury and

actual damages. When balanced against the possibility that Settlement Class

Members might have received nothing by going forward, the District Court did not

abuse its discretion by finding that this factor weighs heavily in favor of approving

the Settlement.

B. The Risks, Expense and Delay of Further Litigation All Support

Approval of the Settlement

The difficulty Plaintiffs would encounter in proving the claims, the

substantial litigation expenses faced by the Parties and a possible delay in any

recovery, all justify this Court's approval of the Settlement. The number of parties

and the complexity of the issues would have made litigation enormously expensive

and time-consuming. This litigation involves 59 Named Plaintiffs, 45 claims and

the laws of all 50 States. Consol. Compl., ¶¶ 10-52, 151 and 165-720. More than

145 fact witnesses from nearly every state were identified along with experts in

pediatric medicine, statistics, toxicology, manufacturing, product design, and

consumer behavior and damages. RE #27, Rule 26(f) Report of the Parties.

Absent a settlement, Plaintiffs would have been required to respond to

both pending Motions. The discovery would have been time-consuming,


51

expensive, and likely disputed. Approximately 300 depositions would have been

taken, and extensive document production -- nearly all of it electronic -- would

have been required. Presuming they survived the Motions, Plaintiffs would have

been required to file and win motions seeking to certify a litigation class. If the

Action proceeded beyond class certification, in addition to extensive fact

discovery, expert discovery would involve experts' reports, rebuttal reports and the

depositions of at least 14 experts. Summary judgment motions and trial

preparation would have been a massive endeavor and required additional time and

resources. Counsel on both sides would have had to expend many hours preparing

for direct and cross-examination, identifying and preparing the exhibits intended

for use at trial, and filing and responding to pre-trial motion practice, including

Daubert challenges and motions in limine. The trial itself would have taken weeks,

if not longer.

These efforts and costs are avoided as a result of the Settlement. In

complex class action litigation, these expenses will burden any recovery obtained

for the Settlement Class, even if Plaintiffs were successful. Moreover, even a

victory at trial might be lost through post-trial motions or likely appeals. All of

this work would have resulted in the expenditure of potentially years of effort, at

great additional expense. The Settlement secures a substantial benefit in a highly-

complex, contested action, undiminished by further expenses and without delay,


52

costs, and uncertainty of protracted litigation. The District Court did not abuse its

discretion by finding that this factor also weighs heavily in favor of approval.

C. The Stage of Proceedings and Amount of Discovery Support

Approval of the Settlement

The Settlement occurred after Plaintiffs had the opportunity to assess

the facts supporting their claims, the legal and factual defenses raised by P&G, and

the risks of continued litigation. Plaintiffs engaged in a significant investigation

prior to filing the original complaint and the Consolidated Complaint. Plaintiffs

conducted substantial factual research concerning Dry Max Pampers, including

investigating the facts of the case by conferring with experts and reviewing

documents produced by P&G. The Parties also participated in "informal core

discovery," as ordered by the Court. P&G provided Plaintiffs with information

about the Dry Max Pampers diapers, information including: (1) all Dry Max

patents; (2) the names of Dry Max ingredients and/or components part suppliers,

with corresponding name of item supplied; (3) the names and locations of Dry Max

manufacturers; (4) a list of all Dry Max ingredients, including quantities,

concentrations and grades of raw materials (both chemical and physical); and (5)

information about the Dry Max assembly process.

Although the Parties negotiated the Settlement at a relatively early

stage, they had adequate opportunity to identify the strengths and weaknesses of


53

their cases. This factor weighed in favor of approving the Settlement. Both sides

were fully apprised of the legal and factual issues presented, as well as the

strengths and weaknesses of their cases, and both sides made a well-informed

decision to enter into the Settlement. RE #76, September 28, 2011 Fairness

Hearing, p. 33 ("The stage of the proceedings was such that certain informal core

discovery was undertaken with the Court's assistance. The parties and their

counsel have done extraordinarily thorough investigation and analysis. And the

stage of proceedings is perfectly appropriate to support the settlement."). The

District Court did not abuse its discretion by finding that this factor favored

approval.

D. The Judgment and Experience of Counsel Who Have

Competently Evaluated the Strengths and Weaknesses of the

Case Support Approval of the Settlement

As the District Court found, both Lead Class Counsel's and P&G's

Counsel are experienced in the field of complex class actions. RE #76, September

28, 2011 Fairness Hearing Transcript, p. 33. Both Counsel represented that the

Settlement was proper based upon their experience, knowledge of the strengths and

weaknesses of the case, analysis of the discovery taken in the case, the risks

associated with this type of litigation, the likely recovery at trial and on appeal, and


54

other factors considered in evaluating the Settlement.37

The Settlement has been

negotiated vigorously and at arm's-length and, at all times, Plaintiffs acted

independently and their interests coincide with the interests of the Settlement

Class. Plaintiffs and P&G entered into the Settlement, with the assistance, advice

and judgment of an experienced mediator. The District Court did not abuse its

discretion by finding that this factor favored approval.

E. The Negotiations Support Approval of the Settlement

Intensive, arm's-length negotiations were facilitated by the Honorable

Layn Phillips, former Judge for the United States District Court for the Western

District of Oklahoma and one of the leading mediators in the country. Phillips

Decl., ¶¶ 2, 3. Prior to the first scheduled mediation session, Plaintiffs and P&G

submitted confidential mediation statements supporting their respective positions.

Id. ¶ 4. Judge Phillips presided over all day, in-person mediation sessions between

the Parties on February 7 and 8, 2011, at his offices in Southern California. Since

a settlement was not reached after two full days of intense negotiations, Judge

37 It is well-settled that, in approving a class action settlement, the courts should

"defer to the judgment of experienced counsel who has competently evaluated the

strength of his proofs." Williams v. Vukovich, 720 F.2d 909, 922-23 (6th Cir.

1983); accord: Kogan v. AIMCO Fox Chase, L.P., 193 F.R.D. 496, 501 (E.D.

Mich. 2000) (citing Bronson v. Bd. of Educ., 604 F. Supp. 68, 73 (S.D. Ohio

1984)).


55

Phillips continued to communicate with Plaintiffs and P&G regarding their

respective settlement positions. Id. ¶ 6.

After multiple telephone mediation sessions, Plaintiffs and P&G

eventually reached a Settlement, which was ultimately documented (after further

negotiation) in the Settlement Agreement. Judge Phillips confirms that the

mediation sessions were vigorous on both sides and that the Settlement was the

result of arm's-length negotiations. Id. ¶ 10. Judge Phillips also states that, based

on his extensive discussions with Plaintiffs and P&G and information made

available to him during the mediation process, the Settlement was negotiated in

good faith and the Settlement is fair and reasonable. Id. ¶ 11. The District Court

did not abuse its discretion by finding this factor also weighs heavily in favor of

approval of the Settlement.

F. That Only Three Settlement Class Members Have Objected

Shows Strong Support for Settlement Approval

In considering a class action settlement, the District Court reviewed

the reaction of the absent class members38

and did not abuse its discretion by

finding that this factor weighs heavily in favor of approval. Not only have all 59

Named Plaintiffs approved the Settlement, but the lack of significant objections

was powerful evidence of the fairness of the Settlement. While the Settlement 38

Olden v. Gardner, 294 Fed. Appx. 210, 217 (6th Cir. 2008).


56

Class is undeniably large -- it likely numbers in the hundreds of thousands -- only

three Settlement Class Members objected to the Settlement, two of whom have a

history of objecting to class action settlements. The Settlement Class reaction

indicates support for the Settlement, and the District Court did not abuse its

discretion by finding that this factor also weighs heavily in favor of approval.

G. The Settlement Is Consistent With the Public Interest

There is a strong public interest in encouraging settlement of complex

litigation and class-action suits because they are notoriously difficult and

unpredictable and settlement conserves judicial resources. As this Court has

stated:

"Settlement agreements should . . . be upheld whenever

equitable and policy considerations so permit. By such

agreements are the burdens of trial spared to the parties,

to other litigants waiting their turn before over-burdened

courts, and to the citizens whose taxes support the latter.

An amicable compromise provides the more speedy and

reasonable remedy for the dispute."

Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir. 1976), cert. denied,

429 U.S. 862, 97 S. Ct. 165 (1976). The public has a significant interest in

settlement of disputed claims that require substantial federal judicial resources to

supervise and resolve. The Settlement ends potentially long and protracted

litigation and frees the District Court's valuable resources. The District Court did


57

not abuse its discretion by finding that this factor also weighs heavily in favor of

approval.

VI. THE DISTRICT COURT CORRECTLY FOUND THAT THE

NOTICE PROVIDED IN THIS CASE SATISFIED THE

REQUIREMENT OF PROVIDING "NOTICE IN A REASONABLE

MANNER"

The District Court approved a Notice Plan reasonably calculated to

reach Settlement Class Members. RE #55, June 7, 2012 Order Preliminarily

Approving Class Action Settlement ("Preliminary Approval Order") at 4.

Plaintiffs published a Summary Notice on various websites and P&G provided a

hyperlink to the Summary Notice on Pampers' website and provided the Summary

Notice on Pampers' Facebook webpage. Id. Plaintiffs and P&G established and

maintained a Class Settlement Website, with information about the Settlement. Id.

The Class Settlement Website posted a copy of the Settlement Agreement, any

preliminary approval order issued by the Court, a long-form notice, and other

relevant information. Id. The Long-Form Notice and Short-Form Notice are

attached as Exhibits A and B, respectively, to the Settlement Agreement.

The notice provided in this extraordinarily well-publicized Rule

23(b)(2) Settlement was more than sufficient. As anticipated, traditional media

wrote articles based upon the press release (after the release was picked up by wire


58

services like the Associated Press), spreading information about the Settlement.39

Notice was available on the Pampers website, as well as the Facebook website for

Pampers. Given the social media associated with this case (as conceded by

Greenberg), the combination of social and traditional media yielded extensive

coverage of the Settlement.

As Greenberg admits, the Court need only "direct notice in a

reasonable manner to all class members who would be bound by the proposal."

Fed. R. Civ. P. 23(e)(1). While Rule 23(e)(1) requires some form of notice of any

class settlement, Rule 23(e)(1) does not require the same level of detail as the

notice associated with Rule 23(c)(2) (required in Rule 23(b)(3) class actions). Int'l

Union v. Gen. Motors Corp., 497 F.3d 615, 630 (6th Cir. 2007) (stating that Rule

23(b)(2) does not require notice before certifying a mandatory class and Rule 23(e)

does not require "a notice to lay out every reason a class member might object to

the settlement") (citing Fed. R. Civ. P. 23(e)(1) ("requiring the court only to 'direct

notice in a reasonable manner'").

39

Information provided to the District Court showed that between June 10 and 20,

2011, many articles about the Settlement were published by the Associated Press

and Reuters news agencies. Final Approval Motion, Ex. 3. The Associated Press,

which services 1,700 newspapers and 5,000 television outlets in the United States,

was one of the first networks to publish the story about the Settlement. Id. By

June 10, 2010, a Google search revealed over 90 stories, and by September 14,

2011, there were more than 21,000 search results revealed from a Google search of

the terms "dry max" and "settlement." Id.


59

A settlement notice need only apprise the Settlement Class Members

of the terms of the Settlement "so that class members may come to their own

conclusion about whether the settlement serves their interests." Id.; accord

DeHoyos v. Allstate Corp., 240 F.R.D. 269, 298 (W.D. Tex. 2007) (holding that

"[a] class settlement notice need only properly identify the plaintiff class and

generally describe the terms of the settlement so as to alert members 'with adverse

viewpoints to investigate and to come forward and be heard.'") (citation omitted);

Dillard v. City of Foley, 926 F. Supp. 1053 (M.D. Ala. 1995) (holding that notice

that advised class members of the terms of the proposed consent decree, the

existence of the opportunity to object and the time and place of the fairness hearing

was sufficient).

Greenberg complains the notice in this case failed to identify the

intended recipients of the cy pres award. Objector-Appellant Brief, pp 51-52.

There is no cy pres award in this Settlement. The Settlement does not result in

"unclaimed funds," nor is it one where charitable donations are made because

distribution to the class would be cost-prohibitive.40

Rather, the Settlement

40

Greenberg's cited caselaw demonstrates the inapplicability of cy pres in this

settlement. For example, the Ninth Circuit stated in Nachshin v. AOL, LLC, that

"a court may employ the cy pres doctrine to 'put the unclaimed fund to its next best

compensation use.'" 663 F.3d 1034, 1038 (9th Cir. 2011) (citations omitted).

Here, there is no unclaimed fund, and there is no distribution to the Settlement (footnote cont'd…)


60

provides for injunctive relief that requires P&G to reinstate and extend its money-

back guarantee program, change its diaper packaging, and produce and fund

programs in the area of skin heath. Settlement Agreement, pp. 19-20.

Administrative details, like the exact locations of the skin health

programs, are not material terms of the Settlement. It is the purpose of the

injunctive relief -- the development of programs in the area of skin health -- that is

the material part of the Settlement. That information has been disclosed to the

Settlement Class Members. There was sufficient notice of the relief offered as part

of the Settlement.

Greenberg further claims the notice is deficient because it does not

provide the sum total that will be sought in Representative Plaintiff Awards.

Objector-Appellant Brief, pp. 52-53. Greenberg fails to mention that even though

there are 59 total Named Plaintiffs, the total amount for all of the awards was only

$51,000; less than $1000 per Named Plaintiff. RE #86-2, Joint Declaration of

Lynn Lincoln Sarko and Gretchen Freeman Cappio, ¶ 3. Many of the Plaintiffs are

both parents of an "affected child," and thus they are entitled to only one payment __________________________ (…cont'd)

Class. Likewise, this is not a settlement where the "cost-prohibitive distribution to

the plaintiff class" would warrant a "series of charitable donations" that would

constitute cy pres distributions. Id. at 1037. Since this Settlement is for injunctive

relief only under Fed. R. Civ. P. 23(b)(2), it does not include any distribution to the

Settlement Class.


61

(and not multiple payments). E.g., Consolidated Complaint, ¶ 16 (Ryan and Stacie

Berman), ¶ 23 (Robert and Angelina Davenport), ¶ 25 (Jessica and Brandon

Ehrhart), ¶ 30 (Morgan Maue and Robin York), ¶ 46 (John and Karina Walker), ¶

47 (Emily and Ryan Weaver), and ¶ 48 (Brigette and Joseph Wolfe). The sum

total of the amount is not material to the Settlement and need not have been

included in the notice.41

CONCLUSION

For the foregoing reasons, P&G respectfully requests that this Court

affirm the decision of the District Court.

41

Greenberg cites to Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 410 (7th

Cir. 2000), cert. denied, 532 U.S. 1038 (2001) for the proposition that the failure to

disclose an incentive award makes the notice deficient. The case provides no

support. Contrary to Greenberg's position, the court did not find that notice was

deficient based upon the alleged failure to disclose the total amount of the

incentive award. Rather, the court rejected the $30,000 incentive payment. Id.

Greenberg has not and cannot cite legal authority for the proposition that the sum

total of the representative payment award needs to be in the class notice for it to be

approved pursuant to Fed. R. Civ. P. 23(e).


62

Respectfully submitted,

s/ D. Jeffrey Ireland

D. Jeffrey Ireland (0010443)

Brian D. Wright (0075359)

FARUKI IRELAND & COX P.L.L.

500 Courthouse Plaza, S.W.

10 North Ludlow Street

Dayton, OH 45402

Telephone: (937) 227-3710

Telecopier: (937) 227-3749

Email: [email protected]

Attorneys for Defendants

The Procter & Gamble Company,

Procter & Gamble Paper Products

Company and Procter & Gamble

Distributing LLC


63

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), Defendants-Appellees P&G

certify the foregoing Brief is in 14-point proportional type and consists of 13,798

words, and therefore complies with the typeface requirement in Fed. R. App. P.

32(a)(5) and the word limitation in Fed. R. App. P. 32(a)(7)(B). P&G further

certify that the foregoing Brief was prepared using Microsoft® Office Word 2007,

and that counsel is relying on the word count of this word processing program.


D. Jeffrey Ireland


64

CERTIFICATE OF SERVICE

I hereby certify that on March 20, 2012, I electronically filed the

foregoing with the Clerk of the United States Court of Appeals for the Sixth

Circuit using the CM/ECF system, which will provide notification of such filing to

all counsel of record.


D. Jeffrey Ireland

593307.3


Objector-Appellant, et al., Plaintiffs-Appellees,

Documents

Transcript of Objector-Appellant, et al., Plaintiffs-Appellees,